Publicity

First published Wed Jan 12, 2005

Publicity can be opposed both to privacy and to secrecy. This entry
will mostly be dealing with the latter meaning. In everyday life, calls
for more transparency or openness in political and economic life may
seem rather uncontroversial. Still, the precise reasons why and the
extent to which publicity should be guaranteed are not straightforward.
Moral and political philosophers, along with social scientists, have
until now provided us with only fragmentary elements in this respect. We
shall review here what has been gathered so far.

This entry unfolds in three parts. We start with
hypothetical publicity, and singularly with Immanuel Kant's
publicity test, contrasting his position with the one of Henry Sidgwick
and looking both at the justification and implications of the Kantian
test (Part I). More precisely, our focus in this first part will be on
two questions. First, what (if anything) justifies the importance of
this test? Second,what are its implications for moral and political
philosophy in general and for actual publicity in particular?
Hypothetical publicity may appear to some readers as the only genuinely
philosophical development on publicity, which justifies the fact that
we will examine it first.

We then look more closely at actual publicity, focusing on
two moments of our political life (voting and deliberation) and two of
its actors (citizens and representatives) (Part II). Authors such as
John Stuart Mill and Jon Elster will be our guides here. Secret ballots
have not always been the rule. Hence, shifting away from open vote gave
rise to fascinating debates, especially in the British 19th century. We
then move to the analysis of reasons for and against public
deliberation, Elster's argument from the civilizing force of hypocrisy
being our starting point here. At least two central questions should be
kept in mind while reading this second part of the entry. First, are
the arguments in favor of open/secret voting different from those in
favor of open/secret deliberation? Second, how much weight should be
attached, in philosophical arguments about publicity, to empirical
claims, and have philosophers paid enough attention to relevant
empirical complexities?

In a third (and shorter) section, we introduce the reader to a few
dimensions of the concept of publicity as it is used in John Rawls's
work. As for many other questions, Rawls has revived the topic. The
ideas of “public rules” and “public reason”
have now become important in political philosophy. We shall briefly
present and discuss them.

Kant's hypothetical publicity test appears in the second appendix to
his Zum ewigen Frieden
(Perpetual Peace) (1795,
381).[1]
He writes:

All actions relating to the right of other human beings are
wrong if their maxim is incompatible with
publicity.[2]

There are at least three interesting issues here. First, what is the
justification for such a publicity test? Is there any reason to suspect
any connection between the ability to stand publicity and the rightness
of a position? Second, which maxims of action and, more generally,
which moral theories are likely not to pass such a publicity test?
Third, what does this test entail with regard to the need for
actual publicity? Answering each of these questions requires
some degree of hermeneutics, especially when it comes to inferring the
meaning of words such as “incompatible” and
“publicity”.

Some interpretation issues can be quickly disposed of.
First, the Kantian test applies specifically to
political maxims and is the equivalent in that sphere of the
more general categorical
imperative.[3]
This is why Kant refers to it as the
“transcendental principle of the publicity of public law”
(1795: 382). Second, it is plausible to read the Kantian test
as a merely negative one: whether a maxim would pass the test
only means that one necessary condition for its rightness has been
satisfied. It will therefore not be sufficient to guarantee that all
successful maxims are right. This is suggested both by the expression
“wrong if” and by Kant's explicit statement: “this
principle is, furthermore, only negative, i.e., it only serves for the
recognition of what is not just to
others”.[4]
Such a reading entails a difference with the categorical imperative
insofar as the latter is a necessary and sufficient condition
for permissibility. Third, it is also clear from the
principle that neither an action itself, nor the actual motives
underlying such an action (Davis 1991, 418) need to be able to be
successfully disclosed in order to guarantee that they are not
wrong. The test only applies to the maxim of such an action,
which already indicates one respect in which such a hypothetical test
could possibly leave room for actual secrecy. This is true
notwithstanding the plausibility of Luban's following claim:
“the best way to make sure that officials formulate policies
that could withstand publicity is by increasing the
likelihood that policies will withstand
publicity”.[5]

Now, what does Kant mean when he uses the word
“publicity”? Were we to face an actual public, we
could give it a more or less demanding interpretation, ranging from
merely general knowledge (each of us actually knows or is able to
know) or mutual knowledge (each of us knows, and knows that the others
know), to critical debate where what we know is being actively
discussed (Luban 1996, 169-172). The latter form of publicity, while
seeming much richer and appealing would probably not fit the Kantian
text.[6]
It could itself be understood in two ways.
Either, publicity would be taken as a synonym of
debateability, i.e., the fact that the maxim be such as to be
deemed minimally appropriate for public discussion, in which case the
test would probably not exclude much. Were it alternatively to be taken
as referring to the ability of a maxim to pass the filter of
actual public debate and be accepted by its participants, the
test would then have a very contingent outcome, depending on the real
public we are facing.

In fact, we can certainly try to ascertain whether publicity should
be understood as general knowledge, mutual knowledge or publicity as
the outcome of public
debate.[7]
What matters much more however, in the context
of understanding the nature of the Kantian test, is that Kant is
referring to an ideal and rational
public.[8]
The test is thus hypothetical, not only because it does not
necessarily require actual publicity (as we shall see), but
also because any outcome of actual publicity would inevitably remain
at best a rough approximation of what the test would lead us to with
an ideal
public.[9]

With this reference to an ideal and rational public in mind, we may
then proceed with the interpretation of the concept of
incompatibility (Luban 1996, 172-176; Davis 1992, 170).
The two notions should be understood jointly
as Kant's following quote demonstrates: “A maxim which I cannot
divulge without defeating my own purpose must be kept secret if it is
to succeed; and, if I cannot publicly avow it without inevitably
exciting universal opposition to my project, the necessary and
universal opposition which can be foreseen a priori is due only to the
injustice with which the maxim threatens everyone” (1795: 381).
The idea of necessary opposition present here can hardly make
sense if it is not used with reference to an ideal public.
Now, in order to give substance to what such an incompatibility could
mean more precisely, let us briefly turn to Sidgwick's views on covert
utilitarianism before coming back to Kant.

As we shall see in Part II, classical utilitarians such as Bentham
and especially John S. Mill were rather sympathetic to the idea of
publicity. Still, it is also among utilitarians that we find one of the
strongest principled defenses of secrecy. Sidgwick defends the idea
that it may be necessary for utilitarianism to go under cover, and that
this does not have to be considered unjust. In his Methods of
Ethics (1874), he writes:

[…] on Utilitarian principles, it may be right to do
and privately recommend, under certain circumstances, what it would not
be right to advocate openly; it may be right to teach openly to one set
of persons what it would be wrong to teach to others; it may be
conceivably right to do, if it can be done with comparative secrecy,
what it would be wrong to do in the face of the world; and even, if
perfect secrecy can be reasonably expected, what it would be wrong to
recommend by private advice or example […]. Thus the
Utilitarian conclusion, carefully stated, would seem to be this; that
the opinion that secrecy may render an action right which would not
otherwise be so should itself be kept comparatively secret; and
similarly it seems expedient that the doctrine that esoteric morality
is expedient should itself be kept esoteric. Or if this concealment be
difficult to maintain, it may be desirable that Common Sense should
repudiate the doctrines which it is expedient to confine to an
enlightened few. And thus a Utilitarian may reasonably desire, on
Utilitarian principles, that some of his conclusions should be rejected
by mankind generally; or even that the vulgar should keep aloof from
his system as a whole, in so far as the inevitable indefiniteness and
complexity of its calculations render it likely to lead to bad results
in their
hands (Sidgwick 1874, 487-489)

As in the Kantian case, Sidgwick not only deals with secret actions,
but with the secrecy of doctrines underlying such actions. Two of his
points are worth stressing. First, the relative
confidentiality of a given practice or — more importantly for us
— of its maxim may not only be acceptable, but may even be a
necessary condition for the moral acceptability of such a
practice — which is then the reverse of what Kant
defends. Utilitarians may indeed consider some practices acceptable on
the condition that they remain marginal. And keeping such practices
confidential may be required for them not to spread around. Secrecy
would thus not only be allowed in this case. It would also be
required. Second, there is a doctrine of
meta-secrecy at play as well, as Sidgwick's argument applies
on top of actions to both maxims and meta-maxims. For him, the very
idea that utilitarianism may allow and even require such covert
actions should itself be kept relatively secret. As Luban puts it,
“not only is it best if utilitarianism is not widely believed,
but it is best if the very fact that the belief in utilitarianism has
been suppressed by the “enlightened few” is not widely
believed. This is no longer Government House utilitarianism. It is
conspiratorial utilitarianism” (Luban 1996, 167).

With the aim of identifying the exact implications of Kant's and
Sidgwick's views, let us look first more closely at the examples they
actually provide in the course of their discussion. We shall begin with
Sidgwick who contrasts two cases: lying and
celibacy.[10]
The argument unfolds as
follows. First, some types of behavior are only morally
acceptable provided that they remain (very) restricted in
scope.[11]
If lying and
celibacy were to become widely practiced, this would become a problem
for utilitarians, according to Sidgwick. However, as long as they
remain marginally practiced to an extent that is justified on
utilitarian grounds, they should be accepted. Second, the
question arises as to whether we should recognize all this publicly.
Albeit not raising any difficulty in the case of
celibacy,[12]
abandoning publicly an absolute prohibition on lying might not be
acceptable for utilitarians. Sidgwick writes:

… assuming that general unveracity and general celibacy
would both be evils of the worst kind, we may still all regard it as
legitimate for men in general to remain celibate if they like, on
account of the strength of the natural sentiments prompting to
marriage, because the existence of these sentiments in ordinary human
beings is not affected by the universal recognition of the legitimacy
of celibacy: but we cannot similarly all regard it as legitimate for
men to tell lies if they like, however strong the actually existing
sentiment against lying may be, because as soon as this legitimacy is
generally recognized the sentiment must be expected to decay and
vanish (Sidgwick 1874, 486).

It is worth emphasizing that Sidgwick clearly states that the need for
secrecy in the case of lying only arises because we are dealing with a
general public that is not constituted only of enlightened
utilitarians. For Sidgwick considers that “if therefore we were
all enlightened Utilitarians, it would be impossible for any one to
justify himself in making false statements while admitting it to be
inexpedient for persons similarly conditioned to make them; as he
would have no ground for believing that persons similarly conditioned
would act differently from himself” (Sidgwick 1874, 486-487;
Piper 1978, 190f). However, once we assume that we do not
live in such an ideal world populated only with enlightened
utilitarians, we may want to keep our complex moral rules secret in
order to avoid counterproductive consequences from an utilitarian
perspective. Such consequences may flow from various sources, such as
a lack of time (e.g., people spending too much time finding out what
the fair action would be), misunderstandings possibly due to
inadequate cognitive abilities (e.g., construing too broadly the class
of cases in which lying would be acceptable from a utilitarian point
of view, leading to a spread of lying) or from distrust towards
utilitarianism (e.g., principles having a larger number of exceptions
generating more doubts about their cogency than elegant and
exceptionless ones).

Notice moreover the difference between the Sidgwickian argument as
illustrated by these two examples and another utilitarian argument that
would justify “self-effacement”, i.e., the idea that to
remain able to reach its goals, utilitarianism should go totally
undercover. In other words, even enlightened utilitarians should stop
being motivated by it. The argument is the following one: being
motivated by a utilitarian goal may impede our ability to
actually reach this very goal. For instance, truly believing
in the value of an artistic project independently of its ability to
bring about happiness is more likely to generate welfare maximization
than being motivated towards this project out of a commitment to
utilitarianism. In other words, a society committed to utilitarian
principles may well turn out to be a less happy one than a society
relying on a given set of common sense principles. If this is true, we
would not only have an argument, for “Government House
utilitarianism” (i.e., for utilitarian principles being relied
upon only by the enlightened few), or for its stronger
“meta-secrecy” version (of which a few enlightened would
still be aware). We would in fact have a case for something even more
radical: the full self-effacement of utilitarianism for utilitarian
reasons, i.e., even enlightened utilitarians would have to forget about
it if they are really committed
utilitarians.[13]

In short, Sidgwick's argument explicitly refers to a
non-ideal public (“society as actually
constituted”, “mankind in general” or “the
vulgar”, as opposed to “an ideal community of enlightened
Utilitarians”). And his view then has to do with a logic of
confinement (necessary to preserve the practice's acceptability)
requiring in cases such as legitimate lying — as opposed to
celibacy — a certain degree of concealment given the fact that
many of us are not enlightened utilitarians. In other words, several
of the reasons for secrecy that could underlie Sidgwick's view on the
lying case would not apply if we were all enlightened utilitarians. It
is worth stressing however that, besides the
“self-effacement” argument, Piper has argued that there
may be utilitarian grounds for secrecy in an ideal community
of enlightened utilitarians as well. For knowing that in such a
society e.g., promises might not necessarily be kept —
keeping them depending in each case on the outcome of a utilitarian
calculus — will cause significant coordination problems
due to lack of predictability of other people's action. In the absence
of secrecy, such an ideal society would then become less efficient
(Piper 1978, 198-199).

Interestingly enough, while Kant's test refers to an ideal public, the
examples he provides us with have to do — as in Sidgwick's
discussion — with a non-ideal public. As we shall see
however, the mechanisms on which Kant's argument rest differ from
those on which Sidgwick's does. Two cases are being envisaged:
rebellion and secession. Let us begin with the former. Kant asks:
“Is rebellion a legitimate means for a people to employ in
throwing off the yoke of an alleged tyrant (non titulo, sed
exercitio talis)?” (1795: 382). The publicity test is used
here in two ways. First, Kant claims that the open
acknowledgement of the maxim of rebellion “would make its own
purpose impossible” (1795: 382). The argument is the
following. A person cannot be said to be the chief if the people may
sometimes employ force against him (chief-with-absolute-power
assumption). The establishment of a state requires a chief in this
sense (no-state-without-chief assumption). Therefore publicizing the
maxim of rebellion would make the establishment of a state
impossible. This is only valid however if we accept the two
assumptions mentioned above. Second, the Chief himself may
publish the maxim according to which rebellion will be sanctioned with
death, “for when he knows he possesses irresistible power
[…] he need not fear vitiating his own purpose by publishing
his maxims” (1795: 383). And it is because of such
irresistibility that publishing this maxim will not be
self-frustrating. Again, Kant does not say whether in a non-ideal
situation in which nobody is in a position to have absolute power, the
fact that publishing the same maxim would frustrate its very purpose
would also mean that this is an unjust maxim. And what is
also worth stressing is that such purpose frustration does not imply
at all to approval by an ideal and rational public. It merely derives
from power relations. Hence, were we to adopt the same line of
argument, we could conclude that the stronger a despotic power, the
larger the spectrum of maxims that may pass the publicity test, a
conclusion that Kant implicitly endorses in the case of maxims of
international
law.[14]

The rebellion example illustrates the difficulty involved in moving
from the hypothetical test to real life situations. What is at stake is
clearly our understanding of what “compatibility” could
plausibly mean once we move from an ideal to a non-ideal public. The
tension in Kant's text is the following. As we keep reading the general
part of his argument, it all looks as if reference is made to the
universal acceptability of a maxim in the eyes of an ideal and rational
public. The rebellion as well as the other examples he gives however
(1795: 383-384) all rely on a “self-frustration” (or
counter-productivity) mechanism. The latter may certainly have a direct
connection with what it may be rational for the beneficiaries and
victims of a maxim to do. Kant remains unclear however about the
connection between such preoccupations and the just or unjust
nature of a maxim.

Let us then take the secession example:

‘If a smaller State is situated as to break up the
territory of a larger one, and continuous territory is necessary to the
preservation of the larger, is the latter not justified in subjugating
the smaller and incorporating it?’. We easily see that the greater
power cannot afford to let this maxim become known; otherwise the
smaller states would very early unite, or other powers would dispute
the prey, and thus publicity would render this maxim impracticable.
This is a sign that it is illegitimate (1795: 384).

Again, Kant refers here to the risk that defense strategies of the
potential losers of a maxim's implementation may render the latter less
efficacious, if not totally inefficacious. There are at least two
difficulties with this. First, in a real life context (e.g.
Cuba or Chechnya type) in which the large state knows that other small
or large states are unlikely to intervene in such situations, publicity
would not make the maxim impracticable. Hence, the maxim could
in principle still be fair if we were to follow the Kantian
logic. Second (and conversely), take a domestic analogy
involving a state fighting a local mafia. Were the state to announce in
advance that it will run a special anti-mafia operation on a given day,
any benefits from a surprise intervention would vanish. In other words,
a maxim stated precisely enough to include the date of the police
intervention could not be publicized. All the local Mafiosi would seek
to hide themselves on that very day, hence making the intervention
totally useless. This will not suffice to convince us however —
even if we were ideal and rational observers — that the planned
police intervention (and the maxim on which it would be grounded) is
unjust.

Both Sidgwick's and Kant's examples rely on non-ideal publics.
Admittedly they do so in a slightly different manner. Kant's ideal
public apparently sticks to the role of a judge whereas Sidgwick's
ideal community of utilitarians is taken as a set of actors whose
understanding of the rules is likely to affect their actual behavior.
However, the reasons justifying secrecy in the examples each of them
gives are of a very different nature. For Sidgwick's illustrations do
not necessarily involve power relation problems. They rather imply
motivational or cognitive dimensions. What matters as well for our
purposes is that whereas the examples given by Sidgwick properly
illustrate the logic of his argument, those provided by Kant do not
really enlighten us further, for the idea of purpose frustration (or
“self-frustration”) mobilized in the rebellion and secession
cases is certainly not applicable once we shift to an ideal public.
Therefore, we shall now rely on four examples distinct from those of
Kant in order to ascertain the meaning and implications that could be
attached to the Kantian test insofar as maxims that have to do with
actual publicity are concerned.

Let us ask ourselves first whether Sidgwick's covert utilitarianism
would be unable to pass Kant's publicity test. As we have seen, this
doctrine states that we should keep secret the very idea that some
principles and actions should remain secret. This means that even at a
very high level of generality, there is no way we could submit any
maxim for assessment to the ideal public, unless such a maxim makes no
direct reference to the problem of publicity. What about the following
maxim however : “any means should be deemed appropriate if they
serve the utilitarian ideal ”? Utilitarians will claim that an
ideal public should at least consider utilitarianism a plausible
doctrine. And it is therefore unlikely that the Kantian test will lead
to a “necessary and unanimous” rejection of this proposed
higher-order formulation of the maxim. Hence the test may be passed
successfully, without any discussion on the issue of publicity. Of
course, one may find such a maxim totally unjust for other reasons. But
Kant himself does not seem to claim that his test should be seen as a
sufficient test for justice anyway.

Our second example comes from actual Freedom of Information (FoI)
regimes. That a public authority may have to minimally justify each of
its significant decisions will seem totally sound. In principle, this
should also hold each time a public authority denies access to a
document requested by a citizen on the basis of his FoI right. The
citizen should know whether it is e.g., on privacy, on trade secret or
on State security grounds that access is being denied to the document
he wants to double-check. There are cases however in which disclosing
the exact reason why access to a document is denied would unavoidably
entail the disclosure of the document's very content. One could deny
access with no overt justification, implying that disclosing the
precise ground for denial would be equivalent to disclosing the
document's very content. Along the same lines, an authority could even
refuse to deny or confirm the very existence of the requested
document — which is known in US law as a Glomar
response.[15]

Again, one may well propose a higher-order principle accounting for a
Glomar type of response: “whenever access to a document may be
denied on a legitimate basis and disclosing either the basis for
denial or even the very existence of the document would jeopardize the
pursuit of this very goal, a justification for denial or even the
confirmation of the document's (non)-existence may be
withheld”. So long as the set of such legitimate bases for
denial is publicly discussed and (procedural) checks are being put in
place to make sure that access is not denied on other grounds, there
is no reason to believe that publicizing such a maxim will be
self-frustrating in presence of a real public, nor that such a maxim
should be rejected by an ideal public. Admittedly, the Glomar doctrine
embodies some extent of “meta-secrecy”. However, it does
not go as far as a meta-secrecy “à la
Sidgwick”. For the very possibility that a State may sometimes
act on secret grounds is not publicly denied, nor are the grounds for
justifiable Glomar responses necessarily left outside the sphere of
public
discussion.[16]

Third example. Suppose that the true goal of the judiciary were to
promote peace and stability rather than justice. However, let us
assume as well that letting people believe that the genuine goal of
such institutions is justice, would best guarantee peace, for decision
acceptance would be enhanced accordingly if such decisions were
perceived as just (Luban 1996, 160). In such a world, there is no
question that peace would better be pursued by keeping it secret as
the true goal of judiciary. The maxim may be: “act in a way such
that if peace is best pursued by letting people think (wrongly) that
it is in fact justice that is being pursued, you should let people
think so”. Publicizing such a maxim may be
“self-frustrating” and would therefore not pass the
Kantian test.

However, besides asking ourselves whether such self-frustratingness
is what accounts for the possibly unjust nature of the maxim, we may
provide a higher order formulation of the maxim: “Act in a way
such that if one legitimate goal is best pursued by letting people
think (wrongly) that it is in fact another legitimate goal that is
being pursued, you should let people think so”. This higher-order
maxim's publication is not self-frustrating (even in a case in
which we assume that the legitimacy of each goal has been examined in
detail, along with the legitimacy of other goals). Of course, this does
not end the discussion since in case we were to grant priority to
justice over peace, the maxim's implementation could still lead to
injustice, which the Kantian test does not exclude anyway.

Let us finally move to an example that deals again with real Freedom
of Information (FoI) regimes. One of the surprises of such regimes is
that, as a matter of fact, their very existence remains rather
confidential in many countries. Citizens do not seem to exercise their
right of access to State-detained documents as much as one might
expect. This could be regarded as unfortunate. One may as well consider
it necessary, however, at least if we find meaningful the idea of an
optimal level of confidentiality of FoI regimes. This optimal
level would consist in some active citizens being maximally aware of
its existence, and all civil servants being as little aware of it as
possible. For if (non-ideal) civil servants know that they are
potentially being watched, they may admittedly try to change their
behavior for the better. However, they may simultaneously want to hide
even further the more problematic aspects of their behavior (e.g.
through shifting from written to oral discussions). In other words, in
order for the fundamental FoI right to be maximally effective, its
existence and exercise may have to remain relatively covert (or
unequally known).

What should an ideal public think about the following maxim then:
“In order for a legitimate goal to be pursued, while the goal
itself would be fully public (here: the accountability of public
authorities), while the social expectations of citizens towards civil
servants would be fully transparent, some of the means enabling such
citizens to ensure the accountability of public authorities may remain
covert”? Not each and every such covert means is acceptable.
However, the one consisting in a right to ask for a copy of
administrative documents may very well be so. Of course, publicizing a
lower order version of this maxim may be self-frustrating, hence
incapable of passing the Kantian test. But again, this does not seem
to be sufficient to discard this lower order maxim as being unjust,
nor does it mean that a higher-order translation of it (as suggested
above) would be unable to pass the Kantian test.

These four examples leave us with two important open questions on the
Kantian test. First, how to assess the test's importance if
the level of generality at which the maxim of an action should be
phrased cannot be normatively fixed? As we have illustrated above, the
lower the level of generality at which a maxim is phrased, the higher
the risk that its publicity would be self-frustrating, and vice versa
(Luban 1996, 189-191). No doubt, the test would be
over-exclusive if we were forced to phrase our maxims at a
very low level of generality. This is clear when we think about
keeping secret the date of a currency devaluation or of a police
intervention to trap criminals, the location of a stock of weapons in
times of peace or of the place where an unjustly threatened writer is
being sheltered. Kant himself never suggests that all secret actions
should be ruled out by his test. The problem is that as long as we do
not have any indication as to the appropriate level of generality at
which an action's maxim should be tested, the opposite risk of
under-exclusiveness becomes hard to avoid as our four
examples above illustrate. Perhaps our expectations towards such a
test are too high however, as they often tend to be towards other
hypothetical devices as well, such as the Rawlsian veil of ignorance
or hypothetical social contracts.

Second, it is not entirely clear why self-frustratingness (or
purpose-frustratingness) should be read as an indicator of
injustice. In other words, whenever the Kantian test bites, why would
this tell us anything about the just or unjust nature of a maxim and
the actions that fall under
it?[17]
And answering this question would be even more crucial for those who
— contrary to us — view the publicity test as a necessary
and sufficient condition for permissibility. What we need
then is an account of the “intrinsic connection” between
self-frustratingness and injustice — in the same way as one may
ask why, for (neo-) contractarians there should be a significant
connection between (hypothetical) insurance and justice. Such an
account is however not provided by Kant who claims about the principle
that “like an axiom, it is indemonstrably certain” (1795:
382). One sound suggestion is Luban's (Luban 1996, 191). Imagine that
making the maxim of my action public would frustrate my ability to
reach this maxim's very goal. This can only be taken as a sign of the
injustice of this maxim if the frustration-generating
mechanism is at least in part based itself on morally justifiable
grounds. But if publicizing a doctrine generates distrust from a real
audience merely because of people's attraction for simplicity or
non-demandingness, the frustration flowing from such a distrust should
hardly be considered relevant to the assessment of the maxim's
(in)justice.

Actual publicity can be looked at through the prism of hypothetical
publicity. However, philosophers have been approaching the issue from
other angles as well. Their arguments have mobilized both empirical
assumptions and philosophical claims regarding the purpose of voting
and political representation, the importance of participation and
deliberation, etc. Hereinafter, we will examine more closely arguments
in favor or against actual publicity in the political arena. In order
to do so, we will restrict ourselves to two modes of political action
(vote and deliberation) and two types of actors (electors and
representatives). In so doing, we will consider two types of
relationships: horizontal ones (among voters or among
representatives) and vertical ones (between voters and
representatives). Notice already that the view one favors regarding
the function attached to one's vote as a member of the electorate and
to one's activity as a representative will have an impact on the
reasons why publicity may matter and the extent to which it does.

Before engaging in this philosophical discussion, let us clarify
what the arguments developed below may show for one significant
practical evolution, i.e., the development of Freedom of Information
(FoI) regimes in democratic countries during the second half of the
20th
century.[18]
Such regimes have been set up with the view of allowing citizens to
participate more actively in public affairs, enabling them to have
access to the detail of most administrative documents in due
time.[19]
Hence, not only
MPs but civil servants become more effectively accountable. This means
that citizens are not forced to simply accept package deals from their
representatives at the time of elections. They can go and question the
practicalities of implementation at any time.

Not only does the enactment of FoI regimes provide opportunities for
multiple interactions between active citizens and state authorities.
They also force us to weigh the relative importance of open government
vis a vis other fundamental rights or the public interest in general.
Specific grounds for denying access to administrative documents include
the protection of privacy, property rights (e.g., trade secrets),
secrecy easing the gathering of information from third parties (e.g.
executive
privilege[20]
or medical secrecy), paternalistic
justifications (e.g., in the case of technical documents that could be
misinterpreted), state interests (e.g., in defense and terrorism matters
or international negotiations), economic efficiency (e.g., in public
procurement, the content of the offer made by competitors being only
disclosed after the final decision). Sometimes, such grounds for
secrecy will justify strict denial of access. On other occasions, the
disclosure of information will simply be deferred (e.g., through
declassification procedures) or selective (e.g., to some types of actors
only). This variety of potential justifications of secrecy and the
diverse ways of accommodating the conflicting values constitute a
largely unexplored terrain for applied political philosophy. Here, we
will only focus on general reasons to promote or restrict
actual publicity.

Let us look at voting first. We may begin with the view according to
which the electoral process only aims at aggregating people's
individual preferences regarding the type of decisions they consider in
their own interest (rather than in the public interest). Under such a
view, there is no strong case for making sure that my fellow citizen be
able to know what my actual preferences are. This is especially
significant when it comes to direct democracy (e.g., referendum).
However, in cases involving representation, there may still be good
reasons under this view of democracy, for representatives to know which
type of electors exactly they are representing, hence for open ballots.
In other words, even under an “aggregation of private
interests” view of democracy, there may be a case for open
ballots. This case will have nothing to do with the need for fellow
voters to know about their neighbor's actual preferences, though. Only
their representatives need to know about them.

Let us now move to a different conception of democracy, the one
advocated for example by John Stuart Mill:

In any political election, even by universal suffrage (and
still more obviously in the case of a restricted suffrage), the voter
is under an absolute moral obligation to consider the interest of the
public, not his private advantage, and give his vote, to the best of
his judgment, exactly as he would be bound to do if he were the sole
voter, and the election depended upon him alone. This being admitted,
it is at least a prima facie consequence that the duty of
voting, like any other public duty, should be performed under the eye
and criticism of the public; every one of whom has not only an
interest in its performance, but a good title to consider himself
wronged if it is performed otherwise than honestly and
carefully. Undoubtedly neither this nor any other maxim of political
morality is absolutely inviolable; it may be overruled by still more
cogent considerations. But its weight is such that the cases which
admit of a departure from it must be of a strikingly exceptional
character (Mill 1861, 355).

J. S. Mill later discusses whether such reasons to depart from
publicity do hold — an issue to which we shall return. What
matters here however is that once we consider that voters are supposed
to vote according to what they believe would promote the public
interest, rather than their own private
interests,[22]
the case for publicity is
reversed. On the one hand, if we can associate to such a conception of
voting one of representation according to which representatives are
supposed to defend the public interest rather than the class interests
of their identifiable
electors,[23]
the case for vertical publicity weakens. For
knowing who their electors actually are may induce MPs to stick to a
defense of their actual electors rather than to promote the public
interest at large. On the other hand, the very act of taking part in an
election acquires a non-private dimension, such that we should consider
ourselves accountable towards our fellow citizens (horizontal
accountability). And this view according to which we should regard
ourselves as horizontally accountable towards those who may be affected
by the consequences of our choices clearly supports the case against
secret ballots. For J. S. Mill, this is a very significant reason for
open ballots. In fact, he even stresses that, as electors, we should
see ourselves accountable not only towards fellow electors, but also to
non-electors whenever the franchise is not as universal as it
could be (which generates the risk of electors voting only to defend
their class interests as
voters).[24]
The example from Mill's times is the one of
women, who were excluded from “manhood suffrage”. Present
day illustrations could refer to non-national residents excluded from
the right to vote or to those below the age of
majority.[25]

John Stuart Mill was not the first to write about vote secrecy.
Authors such as
Cicero (De Legibus III, 15),
Montesquieu,[26]
Rousseau[27]
and
Tocqueville[28]
had also expressed their views on the matter. And J. S. Mill's
intervention is in fact part of a lively debate that had been going on
in England for
several
decades.[29]
He writes:

It may, unquestionably, be the fact that if we attempt, by
publicity, to make the voter responsible to the public for his vote, he
will practically be made responsible for it to some powerful
individual, whose interest is more opposed to the general interest of
the community than that of the voter himself would be if, by the shield
of secrecy, he were released from responsibility altogether. When this
is the condition, in a high degree, of a large proportion of the
voters, the ballot may be the smaller evil. When the voters are slaves,
anything may be tolerated which enables them to throw off the yoke. The
strongest case for the ballot is when the mischievous power of the Few
over the Many is increasing […].

But in the more advanced states of modern Europe, and especially in
this country, the power of coercing voters has declined and is
declining; and bad voting is now less to be apprehended from the
influences to which the voter is subject at the hands of others than
from the sinister interests and discreditable feelings which belong to
himself, either individually or as a member of a class. To secure him
against the first, at the cost of removing all restraint from the last,
would be to exchange a smaller and a diminishing evil for a greater and
increasing one
[…][30]

Brennan & Pettit (1990) recently revived J. S. Mill's argument,
endorsing the view that while we should not assume that people will
generally tend to vote according to their private interest whenever
voting is secret, unveiling the vote would certainly encourage further
the practice of voting in accordance with what one considers to be the
common good (Brennan & Pettit 1990, 325-329). They argue as well that
the case for open vote is especially strong in pluralistic societies
involving large
electorates.[31]

Still, J. S. Mill's lesser evil type of justification for open votes
has been rejected in the past on at least three grounds.
First, one could question the very purpose that J. S. Mill
ascribes to voting. Hence, some of the protagonists of the 19th century
British debate criticized the view according to which voting should be
regarded as a trust rather than a
right.[32]
This entails, in contrast with John S. Mill's view, that ballot
secrecy is not even a lesser evil. It is no evil at
all. Second, one may disagree with Mill the Son at the
factual level rather than at the normative one. James Mill, his
father, clearly agreed with his son on the purpose of voting,
referring explicitly on various occasions to the idea of a trust. In
his long essay “On the Ballot”, he states that “The
voter for a member of Parliament has a trust placed in his hands, on
the discharge of which the highest interests of his
country
depend”.[33]
However, James Mill considered — in opposition to his son's
view — that the negative consequences attached to the secret ballot
were not only less weighty than its advantages, but devoid of any
weight at
all.[34]
This entails that for James Mill as well,
introducing secrecy of vote was not even a lesser evil reform. It did
not involve any evil at all. Third , let us consider Bentham's
position. Although he does not refer explicitly to the trust-based view
of voting, he considers that voters should be influenced by
tutelary motives. For him, “in judging whether a motive
ought to be referred to the class of seductive or
tutelary motives, it is necessary to examine whether, in the
case in question, it tends […] to favour the greatest or the
smallest
number”.[35]
After balancing the pros and cons of
publicity, Bentham concludes: “The system of secresy has
therefore a useful tendency in those circumstances in which publicity
exposes the voter to the influence of a particular interest opposed to
the public interest. Secresy is therefore in general suitable in
elections”. In contrast with James Mill, Bentham's argument is of
the lesser-evil type. But contrary to J. S. Mill, it is a lesser-evil
argument in favor of secrecy rather than
publicity.[36]

Such developments may be dismissed as being of merely historical
interest. And indeed, except for Brennan & Pettit's (1990) paper,
there is not much debate today anymore about the suitability of secret
ballot. Rather, the whole debate on secrecy seems to have shifted its
focus to parliamentary debate, and more recently to administrative
activity (FoI). Still, there are at least three lessons to be learnt
from the old “secret ballot” debate, over and above the
fact that vote secrecy should not be seen as entailing no costs at all.
First, already at that time, there were attempts at envisaging
simultaneously the questions of vote secrecy in the case of electors
and in the case of
representatives.[37]
And the interesting fact is that we do not
have today a clear theory telling us why we should have secret ballots
for electors and open votes in plenary parliamentary sessions. Simply
referring to the fact that representatives are accountable to their
electors (vertical accountability) in a sense in which electors are not
to their fellow citizens (horizontal accountability) seems insufficient
in that respect. Ceteris paribus, the importance of horizontal
accountability, insofar as it emphasizes the need to minimally justify
our decisions to those who may suffer from their consequences, could
suffice to justify openness. Moreover, it is probably also insufficient
to claim that the fact that representatives may lose their job as a
result of electoral discontent is not as problematic as the fact that
electors could lose their job if their employer were to know about who
they voted for. This does not mean that differences are absent.
Ceteris paribus, a representative has more power for example
than a
citizen.[38]
What we need to ask ourselves is whether this
is sufficient to justify a different of treatment between the two
categories with regard to vote publicity.

Second, open vote in parliament may not only give room to
pressure from your actual electors. It may also lead to pressure from
those who did not actually vote for you or from well-organized lobbies
defending some specific interests. This is probably one of the
concerns today in many countries. Publicity allows the electors to use
the stick/threat of non-reelection in full knowledge of what a
representative actually did. Still, it allows as well other actors to
do so, who may neither be the representative's actual electors, nor
lobbies acting in the name of the general interest. The employers and
landowners may not pressure employees and landless people anymore.
Still, lobbyists representing the former may still be pressuring the
MPs elected by the latter, with comparable results. This indicates how
pressure made possible through publicity may force representatives to
take directions that do not fit with the view of the public interest
defended by those who elected them. Pressure is a double-edged sword.
This may call at least for mixed systems, to which we shall come back
shortly. Perhaps this may even justify taking more seriously the
possibility of vote anonymity in parliament, provided that the number
of votes for and against each proposal be known anyway.

Finally, one may consider that the only way of dealing with
such issue will consist in obtaining empirical evidence on the
respective effects of secrecy and publicity and weighing them
up[39].
More
principled arguments could be developed however. Such principled
arguments could take at least two (non-exclusive) forms. According to
one strategy, even in a society where the level of coercion on voters
is very weak on average, it is reasonable to assume that those who will
suffer most from such risk of coercion (given their higher dependence
on others) are the least advantaged. There may thus be a maximin
case for secret ballots on such grounds, putting priority on the
protection of the most vulnerable. The other strategy would consist in
stressing the fact that the extent to which intimidation and coercion
on voters obtains in a given society may fluctuate, hence evolve at
some point for the worse, in line with political or economic
degradations, including good results of intimidating extreme right or
left parties or a higher vulnerability due to growing unemployment
rates. A preventive approach would thus consist in saying that
once coercion would increase to an extent such that it would become
worrying (provided that there are levels of coercion that would not be
worrying in the first place), it would then be too late to switch back
to secret vote. This could justify preserving vote secrecy all along
(and possibly banning e.g., voting via mail or the internet insofar as
they do not guarantee secrecy strictly enough), even when the risk of
coercion or intimidation is currently
negligible.[40]

Let us now turn to the issue of public deliberation. Notice
first that the arguments for open ballots invoked above in the context
of an “aggregation of private interests” view of voting,
equally hold to justify the publicity of debates taking place between
representatives. This may have to do with the mere need to “learn
about each other”. In other words, in a system in which vertical
accountability matters, it is essential both for citizens to know
exactly what their representatives think and do, and for
representatives to know more than once every four years how the
electorate reacts to their arguments and decisions.

Learning about each other is one thing. Learning
from each other (about facts, what to think or how to act) is
another,
however.[41]
Publicity is not only supposed to allow for
citizens and their representatives to act upon fixed preferences
regarding their private or even the public interests. The interactions
that publicity allows for are also potentially rich in transformative
power. Such a dynamic impact can take various forms. Publicity of
deliberations between representatives may play an exemplary role for
citizens (both procedurally and substantively), as suggested for
instance by Jeremy Bentham, who writes that “the order which
reigns in the discussion of a political assembly, will form by
imitation the national spirit. This order will be reproduced in clubs
and inferior assemblies, in which the people will be pleased to find
the regularity of which they have formed the idea from the
greater
model”.[42]
Similarly, we have seen that open ballots can force electors to
restrict themselves in public to positions that they would be able to
justify to other fellow citizens. And this is true even when
their fellow citizens are not especially educated, as J. S. Mill
argued:

The notion is itself unfounded, that publicity, and the sense
of being answerable to the public, are of no use unless the public are
qualified to form a sound judgment. It is a very superficial view of
the utility of public opinion to suppose that it does good only when
it succeeds in enforcing a servile conformity to itself. To be under
the eyes of others — to have to defend oneself to others —
is never more important than to those who act in opposition to the
opinion of others, for it obliges them to have sure ground of their
own. Nothing has so steadying an influence as working against
pressure. Unless when under the temporary sway of passionate
excitement, no one will do that which he expects to be greatly blamed
for, unless from a preconceived and fixed purpose of his own; which is
always evidence of a thoughtful and deliberate character, and, except
in radically bad men, generally proceeds from sincere and strong
personal convictions. Even the bare fact of having to give an account
of their conduct is a powerful inducement to adhere to conduct of
which at least some decent account can be given. If any one thinks
that the mere obligation of preserving decency is not a very
considerable check on the abuse of power, he has never had his
attention called to the conduct of those who do not feel under the
necessity of observing that restraint. Publicity is inappreciable,
even when it does no more than prevent that which can by no
possibility be plausibly defended — than compel deliberation,
and force every one to determine, before he acts, what he shall say if
called to account for his
actions.[43]

Now, representatives can civilize their electorate through public
deliberation, as suggested by Bentham. And voters may well be civilized
by their not-necessarily-civilized fellow voters (and non-voters) in
case of open ballots, as J.S. Mill argued. Jon Elster presented still
another view according to which the publicity of deliberation
would help citizens civilizing their representatives.
Hereinafter, we briefly elaborate on what Elster refers to as
“the civilizing force of hypocrisy”. The central passage is
the following:

Generally speaking, the effect of an audience is to replace the
language of interest by the language of reason and to replace
impartial motives by passionate ones. The presence of a public makes
it especially hard to appear motivated merely by self-interest. Even
if one's fellow assembly members would not be shocked, the audience
would be. In general, this civilizing force of hypocrisy is a
desirable effect of publicity. […] Publicity does not eliminate
base motives, but forces and induces speakers to hide them
(Elster 1998, 111; Naurin 2003).

The Filter

Elster's idea can be presented in two steps. The first one is the
filtering step. The public is meant to hold normative expectations
regarding what representatives are supposed to
say.[44]
One of these expectations is
that any overt reference to mere self-interest in the course of
justifying their position would be seen as
unacceptable[45]
— which
leaves open the question whether a reference to the self-interest of
their class of electors
would.[46]
Another expectation could be that
representatives justify their position through a reference to minimally
general principles. Finally, there would also be a social norm
favoring arguing over
bargaining,[47]
such that whenever the debate would have to take place in public,
deliberation oriented towards the force of the better argument would
be promoted. This will entail at the very least the need to disguise
overt threats as warnings (Elster 1998, 103-104). We may multiply the
number of such expectations. Such normative expectations regarding
acceptable discourse will act as a filter on what the representatives
are allowed to say. Notice that it is not hypocrisy as such that
filters out the set of unacceptable speech elements. However, it
allows the representative to engage into a discourse in which he does
not necessarily believe. In other words, this account does
not necessarily presuppose a normative expectation among the public
that politicians ought to be
sincere.[48]
Actually, hypocrisy is rather an enabling
factor (allowing for an initial gap between what is said and thought)
than a cleaning up factor.

Does the argument presuppose that voters be on average more
civilized than their representatives? At least two types of answers can
be provided. First, there are reasons of principle to
doubt that representatives be on average wiser (or more
committed to the common good) than their electorate. As Luban
writes,

… the empirical validity of the publicity principle turns not on
whether the Many are ignorant or wrong-headed, but on whether their
leaders are less ignorant or less wrong-headed. No doubt the Wise are
few; and the leaders are few; but it hardly follows that the leaders
are wise. Before we reject the publicity principle because the leaders
know best, we must have reason to believe that the leaders know
better. And to find that out, we must look carefully at the variety
of mechanisms by which decision-making elites are actually
selected. If actual selection mechanisms choose randomly between the
Many and the Wise, or affirmatively disfavor the Wise, then the
foolishness of the many is irrelevant: the Few in official positions
have no reason to suppose that their policy brainstorms are any less
foolish (Luban 1996, 193).

Second, the average level of civilization may be less
relevant than the presence of at least a minority of
civilized members. As J. S. Mill puts it, “[…] cases
exist […] in which almost the only restraint upon a majority of
knaves consists in their involuntary respect for the opinion of an
honest minority” (Mill 1861, 362). In line with this Millian
view, were the average level of civilization among representatives
higher or equivalent to the one obtaining within the electorate,
publicity could still increase in absolute terms the amount of
civilized persons attending the representative's discourse, adding
civilized members of the public to those who are civilized in
parliament. Hence, through such a sampling effect, if we
agree with Mill that the mere presence of a civilized minority can
make some difference, a larger absolute size of such a minority might
be relevant. As for Elster, he explicitly relies more directly on a
multiplier effect, insisting that “a small group of
impartially minded individuals might induce many others to mimic their
impartiality out of self-interest” (Elster 1995, 249). And as
Elster points out, this is even more true whenever there is
uncertainty as to who these impartially minded people are
(Elster 1995, 248).

Reducing cognitive dissonance

Now, here comes a second step in Elster's argument (Elster 1986,
§ II). There is an additional normative expectation: once
representatives commit themselves in public to a given view, they are
not supposed to switch to another view unless they can justify such a
departure (Elster 1998, 104).As Elster puts it, “public speaking
is subject to a consistency constraint. Once a speaker has adopted an
impartial argument because it corresponds to his interest or
prejudice, he will be seen as opportunistic if he deviates from it
when it ceases to serve his
needs”.[49]
Citizens may be more or less vigilant
regarding compliance with such a “consistency through time”
requirement. Still, it is likely to have some weight.

Furthermore, as representatives cannot publicly depart from the
principled views they have expressed earlier, they may begin believing
in what they say, even though they may not have been holding such views
at the time they began expressing
them.[50]
Hence, being forced to restrict oneself to publicly acceptable views
may turn out influencing what one eventually believes,
insofar as in order to reduce the dissonance between what one says and
what one believes, one may come to genuinely believe what one is
expected to say. Civilizing people's speech will eventually civilize
their mind (and hopefully in turn their non-linguistic actions) and
— so Elster claims — “on the average, […]
yield more equitable outcomes” (Elster 1995, 251). What begins
as a strategic use of a non-self-interested arguments ends up leading
to preference change (Fearon 1998, 54).

Notice that Goodin has proposed an alternative account to the
cognitive dissonance reduction one. For him, people do have a latent
moral sense and having to state arguments in public acts as a
reminder of what they already agree with. They may not
necessarily have connected the issue at stake with the principles they
do endorse
otherwise.[51]
One possible way of contrasting Goodin's
alternative with the cognitive dissonance view is the following. What
is at stake would be as much a matter of reducing dissonance between
what one says and what one genuinely believes, as one of reducing
dissonance between two separate beliefs one holds.

Having offered an account of Elster's idea of the civilizing force
of hypocrisy, there are at least two empirical questions to be asked.
First, are Elster's factual assumptions empirically plausible? Second,
are there no other negative side effects related with publicity that
could outweigh the benefits identified by Elster? In the next section,
we provide elements that may be relevant to answering the latter
question. Let us briefly address the first challenge here. Naurin
(2004) provides interesting evidence in this respect. On the one hand,
he refers to a study by Joerges & Neyer (1997) that looked closely
at European Union comitology committees. Their study indicates that
public-spirited deliberation can be present in such committees whose
existence is unknown to most people. This may seem reassuring as it
could suggest that publicity is not necessary to foster truly
deliberative behavior. However, on the other hand, Naurin refers to
evidence from Eliasoph (1998: 7) suggesting in the case of activists
that while in backroom conversations they tend to express themselves
with reference to justice and common good concerns, shifting to a front
stage context also increases their use of self-regarding arguments.
Naurin's (2004) own empirical data illustrate a similar trend in the
case of industry lobbyists in the European Union context. In other
words, a forum-like type of behavior would already be present in the
lobby corridor. Surprisingly enough, bringing lobbyists from the
backstage to the front stage would actually make things worse
from the point of view of reducing reference to mere self-interest. One
should admittedly be cautious in extrapolating such
results.[52]
Still, both
Eliasoph and Naurin identify a phenomenon that actually goes in the
opposite direction of what Elster's view implies. This is clearly a
serious challenge to his theory.

The variety of effects of publicity on the nature of the
deliberation process is clearly an understudied matter. We have already
looked at some impacts, asking ourselves whether publicity substitutes
public-interest-oriented to self-regarding arguments, and whether it
leads to a shift from bargaining to deliberation. Here, leaving
Elster's account aside for a moment, we go on with examining other
dimensions of what can be referred to — in an admittedly vague
manner — as the quality of the debate. For one central problem
with publicity is that besides being possibly beneficial in some
respects, it may also modify the nature of the discussion in ways that
are not desirable. One such negative side-effects, as
identified by James Madison in 1787 in the case of the American
Constitutional Convention, is the following:

Had the members committed themselves publicly at first, they
would have afterwards supposed consistency required them to maintain
their ground, whereas by secret discussion no man felt himself obliged
to retain his opinions any longer than he was satisfied of their
propriety and truth, and was open to the force of
argument.[53]

The idea of sticking to a position and not being ready to depart
from it despite the existence of good arguments can be a problem for at
least two
reasons.[54]
Consensus will be harder to reach because of
it, which matters whenever agreement can only be reached by consensus
(be it in a deliberation or in a bargaining type of context). More
importantly, we may be worried not so much about the lack of sincerity
of the actors, but certainly about the loss in debate
spontaneity.[55]
Unless the
deliberating parties are able to try out ideas out of the blue with the
risk of having to abandon them straightaway (trial and error), to
show
hesitation,[56]
to re-consider the issues again and again with a fresh eye, the actual
deliberation may not be more than the juxtaposition of pre-prepared
statements with no actual interaction taking
place.[57]
For the public may view hesitation and trial and error as signs of a
lack of commitment, which may disadvantage those representatives truly
taking part in the discussion, hence inhibiting them from adopting a
genuinely deliberative posture. And as Naurin puts it,
“[…] if deliberation is about transforming preferences,
and publicity forces you to know what you want and stand by your
position, then “public deliberation” is something of a
contradiction in terms” (Naurin 2003, 32). we value deliberation
as a true living interaction with real transformative power, there
might then be a strong case for at least some proportion of political
deliberation taking place behind closed-doors, despite the latter's
negative
side-effects.[58]

Meade & Stasavage
(see Other Internet Resources)
documented another way in which publicity might negatively affect the
quality of deliberation. They deal with the specific case of central
banks and whether minutes of board meetings should be released. Based
on empirical evidence, they show how, under conditions of publicity,
the fact that expert advisors may have career concerns reduces the
chances of dissent being expressed during deliberation. Here, what is
at stake is not whether one sticks to one's own initial
position (posture problem). Rather, it has to do with whether one is
ready to show disagreement with the position taken by another
expert who is highly regarded and has spoken first (dissent
problem).[59]
Hence, publicity might generate disincentives both to openly changing
one's mind and, in some contexts, to dissenting with other
(authoritative) people's views.

In another recent paper, Chambers (2004) points at still another
negative impact of publicity on the quality of deliberation. Discussion
behind closed doors will admittedly tend to allow for the expression of
particularistic (which does not necessarily mean
“self-serving”) reasons that would not pass the test of
actual publicity. However, while making deliberation public might force
the deliberating parties both to provide the best possible
reasons in support of their claims (Socratic effect) and to
provide public reasons (democratic effect) in the sense of
reasons that should refer to the public interest and be acceptable to a
wide audience in a pluralistic society, one problem
remains.[60]
For publicity also tends as a matter of fact to favor reasons that
are “plebiscitory” in the sense of shallow or
manipulative (Chambers 2004, 393). Moving from private,
particularistic reasons to truly public reasons may then often have an
associated price, i.e., shifting from profound (private) reasons to
shallow (public) reasons. Admittedly, the reason why they are shallow
might have to do with the need for a common denominator (which could
be needed as well in a deliberation behind closed doors). However, it
is plausible that it may also have to do with an attempt at pleasing
the public (populism).

These are just a few illustrations of possible negative side effects
of bringing deliberation under the public eye. It may become less
lively (in the sense of being a real interaction), leave room to less
dissent in the presence of an authoritative member, and favor the more
shallow types of arguments, no matter how rational and public they are.
It matters to identify exactly which benefits and which negative side
effects are attached to actual publicity and secrecy, and what their
respective weight could be. It is true in this respect that the
argument may be of a different nature or at least carry a different
weight depending on whether one deals with voting or deliberation. For
instance, the importance of learning from each other (rather than
simply about each other) may provide a strong argument for public
deliberation without necessarily being sufficient to entail the need
for open ballots.

Once all normative and empirical dimensions have been carefully
considered, one may want to adopt a firm standpoint regarding the need
for publicity or secrecy in deliberation and voting in general.
However, we may also want to try to mix secrecy and publicity
in ways that allow for more optimal schemes, providing us with the
best of both worlds. Let us illustrate this through pointing at two of
such schemes. First, Bentham refers to a system obtaining in the
Polish Permanent Council in the late 18th century by which an open
vote was followed by a secret vote on the very same issue (Bentham
1843, 147-148). Second, Elster argues that a constitution-making
process “ought to contain elements of both secrecy (committee
discussion) and publicity (plenary assembly discussions). With total
secrecy, partisan interests and logrolling come to the forefront,
whereas full publicity encourages grandstanding and rhetorical
overbidding. Conversely, secrecy allows for serious discussion,
whereas publicity ensures that any deals struck are capable of
withstanding the light of day” (Elster 1998, 117). One can thus
mix both publicity and secrecy in the case of voting (Bentham) or
deliberation (Elster), through a succession of openness and secrecy
(Bentham)[61]
or secrecy and
openness
(Elster).[62]
One could also envisage to mix public deliberation and secret vote
(which is probably a correct description of what happens during
electoral periods in many democratic countries), or, conversely,
secret deliberation and public vote (which is what actually takes
place in parliamentary systems with secret commissions in which
plenary debates take a purely formal dimension). Each of such mixes
may have specific properties that could be studied further.

We have looked at issues of hypothetical publicity and actual
publicity. In this third and last section, we briefly introduce the
reader to Rawls's views on
publicity.[63]
This aims at illustrating the fact that the
word “public” can be used in various ways, the connection
between each of these meanings still having to be fully investigated.
In fact, Rawls essentially relies on two central concepts of publicity:
“public rule” and “public reason”. Let us look
at each of them in turn.

Let us first look at the idea of public rules. Rawls
discusses this in the context of defining the scope of his principles
of social justice. They apply to the so-called “basic structure
of society”, i.e., the “arrangement of major social
institutions”. It is in the course of defining what an
institution is that Rawls writes:

In saying that an institution, and therefore the basic
structure of society, is a public system of rules, I mean then that
everyone engaged in it knows what he would know if these rules
and his participation in the activity they define were the result of an
agreement. A person taking part in an institution knows what the rules
demand of him and of the others. He also knows that the other know this
and that they know that he knows this, and so on […]. The
principles of justice are to apply to social arrangements understood to
be public in this sense. Where the rules of a certain subpart of an
institution are known only to those belonging to it, we may assume that
there is an understanding that those in this part can make rules for
themselves as long as these rules are designed to achieve ends
generally accepted and others are not adversely affected. The publicity
of the rules of an institution insures that those engaged in it know
what limitations on conduct to expect of one another and what kinds of
actions are permissible. There is a common basis for determining
mutual
expectations.[64]

What does this mean? First, Rawls uses a rather demanding
hypothetical test. He says that even if the system of rules does not
actually result from an agreement, it will legitimately be referred to
as public as long as our knowledge about such rules is the same as the
one we would have if we had effectively been involved in the actual
process of agreeing with such
rules.[65]Second, the idea of publicity goes
beyond mere general knowledge (i.e., each of us knows the rules). It
also extends to mutual knowledge (each of us “knows that
the others know”). Third, the rationale invoked
to justify such a publicity requirement is that people need to know
what is permissible and what is not. It would be unjust to
blame or sanction someone for an action that she would not be in a
position to expect to be in violation of an existing rule. In addition
to this (vertical) justice requirement, there is probably as well a
reference to the benefits from social coordination. This is
what may explain why Rawls insists not only on general knowledge, but
also on mutual knowledge. In this sense, public is used here both in
the sense of “knowable” and “shared”.

Let us mention two more types of considerations. On the one hand,
there are further developments on this matter in Political
Liberalism (II, §4). To the developments above —
corresponding with what he refers to in Political Liberalism
as the first level of publicity — Rawls adds the fact
that the principles of justice should not only be known, but also
accepted (and known to be accepted) (Rawls 1993,
66). Moreover, there are two extra levels of publicity,
having to do with the public nature of the justification of
the public conception of justice. The second level of publicity indeed
applies to “the general beliefs in the light of which first
principles of justice themselves can be accepted, that is, the general
beliefs about human nature and the way political and social
institutions generally work, and indeed all such beliefs relevant to
political
justice”.[66]
As to the third level, it requires that beyond the rather factual
knowledge referred to at the second level, the full justification of
the so-called “public conception of justice” be
available. More precisely, “this justification includes
everything that we would say — you and I — when we set up
justice as fairness and reflect why we proceed in one way rather than
another. At this level I suppose this full justification also to be
publicly known, or better, at least to be publicly available”
(Rawls 1993, 67).

On the other hand, in a paper devoted to the problem of incentives,
Williams argues that in A Theory of Justice,

[…] Rawls appears to regard institutions' constitutive
rules as public in three respects. Thus, individuals are able to attain
common knowledge of the rules' (i) general applicability, (ii) their
particular requirements, and (iii) the extent to which individuals
conform with those requirements. Given such conditions, it is clear
that not all norms qualify as public [and thus
institutional][67]
in Rawls's
sense. For example, self-effacing moral principles, the success of
which depends on some being ignorant of their applicability, are
clearly disqualified. So too are those norms which are so
informationally demanding that individuals are incapable of mutually
verifying the status of their
conduct.[68]

Williams' latter example illustrates a distinct use of the concept of
publicity. The idea is that rules relying on features that are
insufficiently verifiable may not qualify as public rules. This is
arguably the case with the idea of compensating for special labor
burdens, which leads Williams to conclude that “the ideal of
occupational compensation cannot be institutionalized” (Williams
1998, 239) and that

If […] such conceptions should facilitate well-ordered
social cooperation, we have reason to reject conceptions of justice
which, given the fact of limited information, are too epistemically
demanding to be public and stable. We should, like Rawls, favor
conceptions whose scope is restricted to publicly accessible
phenomena (Williams 1998, 245).

It is beyond the scope of this entry to discuss Williams' argument
in
detail.[69]
The slogan that “justice must be seen
in order to be
done”[70]
which he mentions, clearly goes further
than simply requiring that rules themselves be public. It stresses the
importance of ensuring that the degree of actual compliance with such
rules be itself public. This is related with matters of trust in the
State's actual commitment to ensure compliance as well as with concerns
for compliance among fellow
citizens,[71]
both being seen as legitimately affecting
our willingness to cooperate. Justifications for the publicity
requirement mentioned above do not suffice to provide grounds to
establish the need to guarantee the mutual assurance among citizens
that such public rules are effectively complied with, and known to
be
so.[72]
This
just gives an idea of how wide the scope of the publicity requirement
may be in Rawls's own work and how diverse its justifications are. In
this case, what seems to play a key role is that citizens would be
entitled to condition their own compliance with public rules to the
fact that other citizens would equally comply with
them.[73]

The other significant use Rawls makes of the idea of publicity is
through his notion of public reason. In this case, we are not dealing
anymore with whether voting or deliberation should be public or not.
Nor are we asking why rules should be public. Instead, we are asking
ourselves how we should deliberate in public, which types
of reasons we are entitled to refer to in the course of defending
our standpoint to others.

Rawls discusses this extensively in the sixth lecture of
Political Liberalism as well as in “The idea of public
reason revisited”. The core idea is present in what he refers to
as the criterion of reciprocity and the duty of civility. As to the
former, Rawls writes:

[…] the idea of political legitimacy based on the
criterion of reciprocity says: our exercise of political power is
proper only when we sincerely believe that the reasons we would offer
for our political actions — were we to state them as government
officials — are sufficient, and we also reasonably think that
other citizens might also reasonably accept those reasons
(Rawls 1999a, 137).

Similarly, he writes about the ideal of public reason that it is
realized in domestic society:

whenever judges, legislators, chief executives, and other
government officials, as well as candidates for public office, act
from and follow the idea of public reason and explain to other
citizens their reasons to support fundamental political questions in
terms of the political conception of justice that they regard as the
most reasonable. In this way, they fulfill […] their duty of
civility to one another and to other citizens. […] [I]deally,
citizens are to think of themselves as if they were
legislators and ask themselves what statutes, supported by what
reasons satisfying the criterion of reciprocity, they would think is
most reasonable to enact (Rawls 1999a, 55-56).

For example, in dealing with issues such as whether abortion or the
excision of young girls should be allowed, citizens abiding by the idea
of public reason are only entitled to justify the position they want to
adopt on those matters on the basis of reasons that could reasonably be
accepted by other citizens who do not necessarily share the same
metaphysical, religious or cultural views.

There are of course risks attached to such a constraint. For one may
then in some cases be led not to articulate the true reasons why one
would oppose or promote a given standpoint. There are two ways of
addressing this worry. First, we can indicate ways in which the
constraint of public reason does not apply to each and every moment of
our social life. Its scope is supposed to be restricted to discussions
on constitutional essentials and matters of basic justice, which would
exclude e.g., “much tax legislation, and many laws regulating
property, statutes protecting the environment and controlling
pollution; […]” (Rawls 1993, 214; Rawls 1993, Lecture VI,
§ 5). It also applies only to deliberation taking place within
the so-called “public forum”, which excludes “our
personal deliberations and reflections about political questions, or
the reasoning about them by members of associations such as churches
or universities […]” (Rawls 1993, 215). And one can
finally replace an “exclusive” with and
“inclusive” form of public reason. The latter consists in
“allowing citizens, in certain situations, to present what they
regard as the basis of political values rooted in their comprehensive
doctrine, provided they do this in ways that strengthen the ideal of
public reason itself” (Rawls 1993, 247). This leads Rawls to
consider e.g., that 19th century abolitionists and 20th century civil
rights activists combating slavery on religious grounds were in line
with the ideal of public reason (Rawls 1993, 251).

Second, for those still concerned with shallowness and insincerity
due to the public reason constraint, Rawls would insist that we should
stick to such a constraint:

… given our duty of civility to other citizens. After all, they
share with us the same sense of its imperfection, though on different
grounds, as they hold different comprehensive doctrines and believe
different grounds are left out of account. But it is the only way, and
by accepting that politics in a democratic society can never be guided
by what we see as the whole truth, that we can realize the ideal
expressed by the principle of legitimacy: to live politically with
others in the light of reasons all might reasonably be expected to
endorse (Rawls 1999a, 242-243).

There is a substantial amount of literature discussing Rawls's
account of public
reason.[74]
And it is certainly beyond the scope of this entry to look at the
possible alternatives to Rawls's way of dealing with the consequences
of “the fact of reasonable pluralism”. Suffice it to say
here that the adjective “public” as it is used here refers
more to “shared” or “social” (as in
“public life”) than to “transparent” (as in
“public pleadings”). The idea of “public
rules” as used by Rawls is more ambiguous and refers to the
opposite of both “secret” and “private”. The
possibly deep and numerous connections between these meanings of
publicity remain yet to be explored more carefully.

We began our exploration by looking at Kant's hypothetical publicity
test. We asked ourselves whether there were good reasons to believe
that hypothetical publicity should be considered a sound requirement to
test maxims of action. We also wondered whether hypothetical publicity
entailed significant restrictions from the point of view of actual
publicity. The answer appears to be rather negative in both cases. For,
first, there does not seem to be any intrinsic relationship
between self-frustratingness and justice. To put things in another way,
the less the effect of publicity is contingent, the more we can doubt
about its validity as a test of justice. And second, if no
criterion is provided as to the level of generality at which the
Kantian test should operate, we run both risks of under and
over-exclusiveness. Which maxims of action should be deemed unjust is
therefore left rather undefined by the test in most cases.

While it is unclear whether the Kantian hypothetical publicity test
could (and should) be rescued, there is no doubt that actual publicity
issues raise very interesting philosophical challenges. One of them
has to do with the articulation between, on the one hand, the function
that political philosophy ascribes to voting, representation and
deliberation, and, on the other hand, the types of effects that could
be expected from going public. In the course of our discussion, we
also tried to draw parallels and to identify differences between
voters and their representatives (e.g., through the idea of horizontal
accountability) and between the voting and the deliberation debate.
The meaning of the publicity requirement may differ significantly as
well when we compare standard representative bodies (e.g.
parliaments) with the civil service or with “independent”
bodies acting within a democratic context (e.g., central banks or
courts). Publicity in the latter case is likely to have both a meaning
and consequences quite different from the ones attached to public
deliberation e.g., in a parliament's plenary session.

Moreover, while we certainly did not question the possibility of
developing principled views in the field of actual publicity,
factual assumptions present in most of the key arguments in
this respect (e.g., in those of J.S. Mill or Elster) require more
extensive empirical research. The results that we reported from some
of these empirical investigations are potentially rich in consequences
for our normative theories. The data gathered by Naurin (2004) and
Meade & Stasavage (2004) are especially important in this
respect. As is the case with other issues in political philosophy,
there is certainly a need here for philosophers to engage in a
dialogue with social scientists.

Finally, we briefly presented Rawls's uses of the idea of publicity.
The variety of ways in which he refers to it certainly shows the need
for a more substantial mapping enterprise, at a strictly conceptual
level. This could in turn indicate reasons to develop philosophical
arguments in new directions.

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